United Brotherhood of Carpenters and Joiners of America, Local 18 v. Rili Construction Weston Ltd.
[1997] OLRB REP. NOVEMBER/DECEMBER 1044
2816-96-JD United Brotherhood of Carpenters and Joiners of America, Local 18, Applicant v. Rili Construction Weston Ltd. and Labourers' International Union of North America, Local 837, Responding Parties
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
APPEARANCES: David McKee and Bill Veitch for the applicant; Carl Peterson, Dan Verrilli and John Dicostanzo for Rili Construction Weston Ltd.; A. M. Minsky and M. Bastos for Labourers' International Union of North America, Local 837.
DECISION OF THE BOARD; December 8, 1997
Decision
1This is an application concerning a work assignment filed with the Board pursuant to section 99 of the Labour Relations Act, 1995 ("the Act"). A consultation with the parties was held by the Board on February 17, 1997, at which time the Board requested that the parties, clarify the work in dispute.
2At the continuation of the consultation the parties provided the Board with a signed agreement dated August 18, 1997 setting out what work remains in dispute. The work in dispute was performed in the ICI sector.
3The parties agreed that the work performed by a "swamper" on this project, who is a member Labourers Local 837, does not form part of the work in dispute.
4The parties further agree that the stripping of forms and formwork material, shoring for suspended slab work and the rigging of forms and formwork components by crane do not form part of the work in dispute. The parties also acknowledge that this "agreement is without prejudice to the positions of the parties as to why this work is not in dispute as set out in their respective briefs".
5The parties disagree on whether the "setting and adjusting of components (screw jacks or other materials) for the bracing of forms" are part of the work in dispute. Carpenters Local 18 claims that work is part of the dispute, while the two responding parties dispute the carpenters' claim. By the very positions the parties take with respect to this part of the work the Board finds this is part of the work in dispute.
6The parties' agreement set out the remainder of the work in dispute as follows:
The installation (the Labourers and Rili would use the word "placing") of the bolts, ties, wedges and other miscellaneous embedded metal attached to forms.
The installation of neoprene rubber on expansion joints.
The fabrication and installation of scaffolding, platforms and attached safety rails forming part of the formwork.
The placing, erecting and rough* adjusting of column forms (*final adjusting is carpentry work).
All work in connection with the placing and assembly (at the point of installation) of shoring frames, screw jacks, U heads, stringers, joists, plywood and bracing.
7When considering jurisdictional complaints filed with the Board under section 99, the Board generally considers the factors first discussed thirty years ago in the Canada Millwrights Ltd., [1967] OLRB Rep. May 195. The Board would refer the parties to the various discussions considering what factors are considered in determining jurisdictional disputes. (See Acco Canadian Material Handling, [1992] OLRB Rep. May 537, Vic West Steel, [1993] OLRB Rep. March 256 and Groff & Associates Ltd., [1994] OLRB July 846).
8After reviewing the extensive materials the parties filed with the Board, the agreement of the parties dated August 18, 1997 and after considering the very able and thorough oral submissions of counsel, the Board makes the following ruling.
9The factors of skill and ability do not assist the Board. Members of both unions are capable of doing the work. The employer's practice is to assign the work to a composite crew in the ICI sector and to labourers in the residential sector. The area practice is mixed with respect to ICI jobs. The assignment of the work in dispute to a composite crew of carpenters and labourers was a reasonable assignment in the circumstances. The Board is satisfied the assignment was made in good faith and is not persuaded to interfere with the assignment of the work in dispute made by the employer.
10The complaint is accordingly dismissed.
11The Board would note the concerns raised by a number of contractors (who provided letters confirming their assignments of the work in dispute) with respect to this issue. It is the contractors' hope that the two unions work out an agreement with respect to the disputed work to assist the employers of their members in competing with contractors in the non-union construction sector.